Wood v. Kelly
New York Court of Common Pleas
Appeal from an order of the special term, upon a motion to dismiss an appeal from a district court. The plaintiff having recovered a judgment in the First District Court against the defendant, the latter appealed to the general term of this court. The undertaking for costs filed by him was, however, drawn in the form usual in appeals from the special to the general term of the Supreme Court, and was not drawn in compliance with section 354 of the Code.
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Appeal from an order of the special term, upon a motion to dismiss an appeal from a district court. The plaintiff having recovered a judgment in the First District Court against the defendant, the latter appealed to the general term of this court. The undertaking for costs filed by him was, however, drawn in the form usual in appeals from the special to the general term of the Supreme Court, and was not drawn in compliance with section 354 of the Code. The plaintiff moved to' dismiss the appeal on the ground of this defect in the security. The judge at special term granted the motion, with…
1Opinion of the Court
By the Court, Daly, First Judge.
Of the power of this court to allow an amendment, or to allow something to be supplied which has been omitted by mistake, where a party has, in good faith, given notice of appeal from a judgment of the Marine or district courts, so as to conform the proceeding to the requirements of the Code, we have never entertained any doubt. We have even allowed the notice to be amended by inserting the grounds of appeal. See case referred to in Irwin v. Moore, (13 How. 410), decided at the general term, in July, 1856. The authority to do so, on such terms as may be just,…
2Cases cited1 opinion
- Howard v. IngersollSupreme Court of the United States · 1852
3Cited by2 opinions
- Stauff v. MaherNew York Court of Common Pleas · 1867
- People ex rel. Roosevelt v. EdsonThe Superior Court of New York City · 1885